Question Two: On the Morality of Sterilization to Be Imposed by Public Authority

I. State of the question. After what has been said concerning the morality of private sterilization, it must now be asked whether public authority can decree it, or even impose it, for the common good. Not only do many physicians and politicians affirm this; but a few theologians have also been found who doubt concerning this, or who, by way of suspicion or opinion, incline toward admitting it, at least in certain cases.¹ They allege especially two reasons:

¹ Thus Donovan, although hesitantly, asserted in Ecclesiastical Review, 1910-1911; likewise Labouré, ibid., 1910-1911; Neoscholasticus, ibid., 1910; later, in principle but with a restriction, J. Mayer, Gesetzliche Unfruchtbarmachung Geisteskranker, 1927; likewise Tillmann, in Bonner Zeitschrift für Theologie und Seelsorge, 1928.

1. Sterilization is licit for the good of the whole body; therefore it is also licit because of a danger threatening the common good. For just as a member is subordinated to the whole body, so the individual is subordinated to the good of the whole society. But in certain cases a certain utility results from sterilization.

2. The State has the right to deprive individuals of life, liberty, and rights when they abuse them with danger to society; therefore, by parity of reasoning, it can deprive them of the right to enter marriage and of the faculty of generating, in order to forestall abuses and prevent offenses against the common good.

II. Sterilization to be imposed by public authority is illicit and unjust, unless it is done to punish malefactors.

The right to life and to the integrity of the members, the right to enter marriage and to procreate offspring, belong to each individual from nature itself as primary and primordial rights antecedent to society; therefore, they do not depend upon society, but man enjoys them logically before he is a member of society, and enters society with them. Public authority, therefore, does not have a direct right and dominion over life and the integrity of members or organs, or over the right and faculty of generating offspring; consequently, it cannot exercise direct power over them, remove them directly, or impede those rights directly, unless it is to punish malefactors or delinquents, upon whom it can justly inflict the penalty of death itself, and a fortiori the penalty of mutilation. Hence the aforesaid rights are inviolable and lie outside the competence of the State. Rather, from its own proper mission, the State ought positively to protect the rights of citizens, and has the duty of preserving the security of citizens, defending their rights, and not permitting them to suffer harm in those rights.

The body and the integrity of its members and organs are ordered to the good of the individual, not to the good of society. And although the State can prescribe to citizens that they expose themselves to danger of life for the common good, because natural right dictates this, it nevertheless cannot directly dispose of the life of innocent persons. Hence:

a. Even upon those for whom sterilization is licit for the sake of bodily health, public authority cannot impose it by law or force, because provision for one's own life and health does not pertain to the State and is not necessary for the common good; unless perhaps, exceptionally, in a very rare case, the sterilization of a certain private person could contribute to the common good.

b. It cannot declare sterilization licit for innocent persons of sound mind, apart from the case in which it is necessary for them for the sake of bodily health.

c. It could perhaps impose sterilization as punishment for a proportionate offense: castration, for example, for rape or adultery. But this is almost no longer admitted in modern law and accords less with our customs. Vasectomy and fallectomy, however, are not suitable punishments, because they are not painful and do not deter from crime, since, on the contrary, persons thus sterilized can give themselves to sexual life with impunity. Wherefore, in that case sterilization would rather be an incitement to fornication.

d. As a preventive means of impeding the procreation of offspring infected by heredity from the infirm and insane, it is altogether illicit, because the right of procreation is individual and personal. Moreover, there are other means, such as prohibition by law under penal sanction, separation and confinement, abstinence from marriage, and so forth; therefore sterilization is not necessary.

Such is the morally unanimous consensus of the theologians who have written concerning this matter.² And now Pius XI, in the encyclical Casti connubii, has explicitly condemned sterilization imposed by public authority:

² The following can be cited: Rigby; De Becker; Vermeersch, de Villers, and Salsmans; Ferreres; Wernz-Vidal; Schmitt; Lehmkuhl; De Smet; Schilling; Cathrein; Hürth; Mausbach; Gerrard; Grosam; Stucchi; Tanquerey; Gasparri; Pighi; Wouters; Eschbach; Antonelli; Cappello; Aertnijs-Damen; Marc-Geistermann; Prümmer; Michel, in Dictionnaire de Théologie, art. Mutilation; Michaud, in Nouvelle Revue Théologique, 1914; A. Janssen.

"Public magistrates have no direct power over the bodily members of their subjects; therefore, where no fault has intervened and no cause for a bloody punishment is present, they can never directly injure or touch the integrity of the body, whether for eugenic or for any other reasons. St. Thomas Aquinas teaches the same when, asking whether human judges can afflict a man with some evil in order to prevent future evils, he indeed concedes this with regard to certain other evils, but rightly and deservedly denies it with regard to bodily injury: According to human judgment, no one ought ever to be punished, without fault, with a corporal punishment, such as being killed, mutilated, or beaten."³

³ Summa Theologiae, II-II, q. 108, a. 4, ad 2.

Therefore sterilization is not licit for the advantage of the State, but is unjust, because it is not necessary, because it is superfluous, because it is excessive, and because it is an unjust invasion of the integrity of the person, except in the case of malefactors.⁴

⁴ Davis, Moral and Pastoral Theology, II, ch. VI, on the Fifth Precept, sect. 8.

III. Corollary. Likewise, public authority cannot prohibit even infirm and insane persons from marriage for, say, eugenic reasons. For by the very fact that nature makes a man capable of generation, he has the natural right of procreating. As the encyclical Casti connubii says:

"No law of men can take away from man the natural and primordial right of marriage, or in any way circumscribe the principal cause of marriage established in the beginning by the authority of God: Increase and multiply." Hence "those who act thus wrongly consign to oblivion that the family is more sacred (that is, higher and more inviolable) than the State, and that men are begotten primarily not for earth and time, but for heaven and eternity. And it is assuredly not right to burden with grave fault, if they contract marriage, persons otherwise capable of marriage who, even after every care and diligence has been employed, are conjectured to beget only defective offspring for that reason, although marriage is often to be dissuaded for them."

Moreover, the saying of St. Thomas is to be noted, Supplement to the Third Part, q. 64, a. 1, ad 4: "Although infirm offspring is begotten, nevertheless it is better for that offspring to exist thus (especially because of the possibility of the beatific vision) than not to exist at all."

IV. They object. A. Just as the members of the body are subordinated to the whole body, so individuals are subordinated to the good of the whole society. For St. Thomas says, II-II, q. 64, a. 2:

"Every part is ordered to the whole as the imperfect to the perfect, and therefore every part is naturally for the sake of the whole. And for this reason we see that, if the cutting off of some member is expedient for the health of the whole human body, as when it is putrid or corruptive of the other members, it is laudably and wholesomely cut off. Now each individual person is related to the whole community as a part to the whole. And therefore, if any man is dangerous to the community and corruptive of it because of some sin, he is laudably and wholesomely killed, that the common good may be preserved."

And q. 65, a. 1:

"Because the whole man himself is ordered, as to an end, to the whole community of which he is a part, ... it can happen that the cutting off of a member, although it tends to the detriment of the whole body, is nevertheless ordered to the good of the community, insofar as it is inflicted upon someone as a punishment, for the restraint of sins. And therefore, just as by public authority someone is licitly deprived of life altogether because of certain greater faults, so also is he deprived of a member because of certain lesser faults."

But this also holds of those citizens who, because of a hereditary taint, are harmful to society.⁵

⁵ Thus Mayer holds in principle, op. cit. For, he says, in practice the State has no right: 1. because the necessary conditions are lacking, namely, that the hereditary origin and a certain consequence in a determinate case be established; 2. because the utility to be expected is not proved; 3. because other means are not lacking.

Response. The comparison limps. It is true that, just as all the members of a body procure the good of the whole body, so in society all individuals ought to concur toward the good of the whole society. But there are many differences. Members exist for the good of the body alone; individuals do not exist for society alone, nor are they subject to society in all things, for "man is not ordered to the political community according to his whole self and according to all that belongs to him."⁶ The members of the body are not persons with rights; individuals are persons having rights which the State ought to preserve.

⁶ St. Thomas, I-II, q. 21, a. 4, ad 3.

The whole body is one intrinsic whole per se, in which all the parts exist only for the good of the whole; the whole alone is independent and has individuality. Society is an extrinsic whole, one per accidens: it is not one being, but consists of many associates who preserve their proper individuality and independence, but among whom there is unity of order. Hence the organs of the body have a special function, but live only through one body and in one body; they do not have a separate existence, and therefore are totally subordinated to the good of the whole. A part of the body, namely, does not have its own end. On the contrary, persons are individuals who, having their own end, exist for their own sake and not only for society. The person as such is inviolable as regards his end and is subordinated to no one except God alone. Therefore society cannot dispose of persons and of their integrity and natural rights, unless they are malefactors or criminals. They are nevertheless subordinated to the State as regards procuring the common temporal happiness of all; but the State also exists for their sake, as bringing them necessary assistance toward their own end.

The function of the State, therefore, is not to take away the antecedent rights of the person, but to render the exercise of them more secure. Its function is to improve the life and vital operations of its subjects, not to destroy them. And just as it cannot directly impede vital operations, such as thinking, knowing, willing, seeing, hearing, sensing, and eating, neither can it impede the operation of procreating and generating. These natural rights are inviolable.

B. They insist:

a. Just as it is licit to cut off a member for the health of the whole body, so too it is licit, if necessary, to procure the health of the whole social body and of the stock.

b. The State can imprison men who constitute a danger to society and impede them from the exercise of a faculty; so too can it act against those who, by generating, constitute a danger to the stock. But imprisonment or separation can be an ineffective or impossible means; therefore sterilization is then licit.

c. St. Thomas says of malefactors that they are like beasts and that it is therefore licit to kill them: "Although to kill a man remaining in his dignity is evil according to itself, nevertheless to kill a sinful man can be good, just as to kill a beast; for an evil man is worse than a beast and does more harm."⁷ But this too can be said of a harmful insane person who is led by a bestial sexual instinct: he has lost human dignity, namely, and the right to procreation.

⁷ II-II, q. 64, a. 2, ad 3.

Response. If this were so, it would be licit not only to impose sterilization, but rather euthanasia and death. For sterilization does not suffice to prevent scandals and the bestial instinct. But:

1. The radical right which is given with human nature is one thing, and the use of the right another. An insane person who cannot use the right of procreation in a human manner can, while the insanity lasts, be impeded from this use, but cannot be deprived of the radical right itself and of the power of generating, as is done by sterilization. If he had lost this right, it would also be licit for private persons to sterilize him.

2. One who cannot rightly use a right does not lose the right; otherwise he would be deprived of the right to life, to health, to integrity, to private ownership, and so forth. The right is not given with its use, but with human nature, and therefore it inheres in all, even children and the insane. The State cannot take it away, but ought rather to protect it: law ought to guard the rights of citizens. Nor does a right cease because of abuse.

3. St. Thomas always presupposes an offense, sin, and fault, and speaks of deprivation of life or a faculty as punishment; he never said, nor even implied, that this applies to one insane in mind.⁸ Hence what he says of sinners who voluntarily harm others through fault is wrongly applied to the insane who involuntarily cause harm. Therefore, just as it is illicit to cut off the hands of kleptomaniacs in order to prevent their thefts, so it is illicit to mutilate or sterilize the insane lest they harm society.

⁸ In the cited places.

Moreover, although each person is ordered to the good of the whole, he is not thereby directly ordered to the health of society.

C. The common good takes precedence over private good, and therefore in necessity the State can also demand the sacrifice of life for its own defense.

Response. It is one thing to require citizens, if necessary, to expose their lives for the common good, because natural right demands it; it is another to take away by positive law the rights granted to citizens by nature. The State can defend itself, but by licit means, not by intrinsically evil means.

D. The necessity of the State is the supreme law: this is the foundation of all its rights.

Response. This theory is full of dangers. What the common good demands is right. Necessity alone removes disorder from acts otherwise illicit! Then all things would become licit if the State judged them necessary. And the power of the State would be unlimited: the State would not exist for individuals, but individuals would exist simply for the State.

But this is false. Before the State can impose a law for the common good, two things must be established: 1. that the means imposed is not evil; 2. that the right of disposing of it was not given to another before the State. Individuals and families exist before civil society.

V. Applications. It is now fitting to apply the principles set forth more concretely.⁹ The State imposes sterilization either for the defense of individuals, or for the common good, whether as a punishment or as a preventive means.

⁹ The following are taken from the distinguished professor A. Janssen, Het onvruchtbaar maken van zwakzinnigen en misdadigen, in Collectanea Mechliniensia, 1927; and Les lois sur la stérilisation, in Saint-Luc médical, 1934.

A. For the defense of individuals, as a means of protecting the life and rights of citizens, sterilization cannot be justified. The individuals are either those now living or those foreseen as to be born.

1. For the protection of the living, lest they be victims of abnormal and criminal passions, sterilization is ineffective and superfluous:

ineffective, because vasectomy and fallectomy leave the sexual instinct complete and the possibility of intercourse. The latter is infertile, but on that account is all the less avoided by those who are led by a bestial instinct. Likewise, castration is not an effective remedy, for eunuchs also have their loves;

superfluous, because another means exists, namely, separation.

2. For the protection of weak and abnormal persons to be born:

a. It can never be said with certainty that the children to be born will necessarily be affected by the defects of their parents. More often an individual altogether different from what had been foreseen is born. Therefore there are only greater or lesser conjectures. But a conjecture cannot be the reason for depriving a man of a certain right which he holds from nature.

b. Even if the children to be born will probably or certainly be abnormal, sterilization is not justified. For no right of children not yet begotten exists, because a right presupposes a subject of the right; before conception the subject does not yet exist. Therefore it is impossible either to injure or to protect their rights. Moreover, even for children or the weak, it is better to be called to life in less favorable circumstances than not to exist in any way: "It is better," says St. Thomas, "to exist thus than not to exist at all." To live is still a great benefit; and their spiritual soul, created in the image of God, can enjoy spiritual life, know God, receive His grace, and be endowed with the eternal vision of Him.

B. For the common good:

1. As a punishment. It cannot be denied a priori that sterilization can be applied as a punishment for a crime; but, all things considered, it is not an effective or adequate punishment.

a. Mutilation in general does not appear to be a commendable punishment. It is repugnant to modern ideas and customs, and has been abandoned almost everywhere.

b. Mutilation of a genital organ in particular does not appear commendable. The sanction of a punishment is established before an offense in order to deter citizens from the offense, and after the offense in order to restore the order injured by fault, to correct offenders, or to deter others by example. A punishment which is not apt for these ends is unsuitable. Such is sterilization.

Present operations do not cause much pain; therefore they do not deter. The degradation arising from deprivation of the generative faculty can move an honorable or normal man, but not the abnormal and criminal. They prefer sterilization, because they can practice vice with impunity. Experience has proved that many greatly desire it.¹⁰ Such a thing certainly is not a punishment, nor is it able to correct offenders. Moreover, eugenicists now reject punitive sterilization.

¹⁰ Thus Dr. Sharp of Indiana states that 176 persons asked him to perform sterilization upon them, because others had said so many good things about this operation.

2. As a preventive means against the multiplication of abnormal persons. This is illicit not only for Catholics, from the encyclical Casti connubii, but for all, as contrary to natural law. This does not move many, but it can be said to them that sterilization is not very effective for this end, is not necessary, and presents great disadvantages.

a. Not very effective. Punnett, a professor at Cambridge who enjoys great authority in eugenic matters and in the theory of heredity, made a computation according to which sterilization would have to be applied for 216 generations in order to reduce the number of abnormal persons from 1 in 100 to 1 in 10,000. And Dr. Niedermeyer, a Viennese physician, estimates that for thirteen generations more than 500,000 individuals would have to be sterilized in order that the number of those suffering from schizophrenia be reduced from 60,000 to 30,000.¹¹

¹¹ Saint-Luc médical, 1936, no. V.

b. Not necessary, for danger to the human race is not yet present.

alpha. The number of abnormal persons is not yet so great that society is already under a necessity of defending itself.

beta. Heredity is not the sole cause of abnormal persons. It is impossible to say adequately how great its influence is; but there are many other physical and moral causes, such as blastophthoria, blastotoxia,¹² syphilis, blennorrhagia, alcoholism, defective social conditions, insufficiency of food, unhealthy habitation, and so forth. Therefore the common causes are first to be removed by the State through hygienic remedies. Moreover, the laws of nature appear to tend toward correcting hereditary diseases after some time or some generations.

¹² Dr. Vervaeck asserts that blastotoxia is a cause of degeneration more than heredity.

gamma. Even if heredity were the sole or principal cause, sterilization would not yet be necessary, for other means exist, especially segregation. This is a less radical means, because it impedes only the use and does not take away the faculty. Now, since another means exists, sterilization cannot be employed, because defense cannot exceed the limits of sufficiency and necessity. The American society Central Association for Mental Welfare [printed: Walfare], which subjected 34,000 cases of mental diseases to examination over ten years, acknowledges that a general law of sterilization is not effective as a preventive means; that the liberty left after sterilization is rather harmful to the sterilized and only causes them to be segregated later; and that sterilization protects neither abnormal persons nor society.¹³

¹³ They say: imprisonment is more cruel than sterilization and demands greater monetary expenses. Response. Segregation is not necessarily strict imprisonment. Thus in Denmark, the island Sprogø is reserved as a colony for abnormal girls and women, who are occupied with agricultural labors and other work; similarly the island Livø for young men. There they lead a sufficiently happy life, and generally a better one than they would have had in their own family.

3. It presents great disadvantages in practice. For:

a. Who ought to undergo sterilization? By what criterion is this to be judged? In the present state of science it is impossible to determine with sufficient certainty which persons will have abnormal children.

Laughlin says: only grave and indubitable abnormal persons; afterward, when the laws of heredity are better known, a broader application will be possible. The German law is more determinate. Nevertheless, it remains difficult to determine in what degree the infirm ought to have contracted the disease. This uncertainty provides occasion for abuses; the law, for example, could be applied to political adversaries more than is necessary.

b. In order to be effective, sterilization ought to be performed at a young age. But in many cases the necessity of sterilizing is manifested only after puberty, or when offspring has already been generated.

c. Among many persons, the presence of a harmful hereditary taint will remain hidden, because they will easily conceal it.

d. There are also dangers of arbitrary application. Abuses are to be feared because of superficial investigations or reports, the exaggerated ideas of certain physicians, and the untimely zeal of officials. Dangers especially threaten the poor and the weak, among whom their very condition will easily be a cause for impeding generation.

e. Even with sterilization in force, a great number of abnormal persons will still have to be confined because of their continuing tendency toward crimes.

f. Finally, physicians acknowledge that sterilization is a means which provokes lust. The number of fornications is increased, free love is fostered, and a custom is introduced of separating the sexual instinct from the end of generation; future generation is preserved, but the present generation is infected by the poison of immorality and becomes most wicked.

And the labor itself can be productive and remunerative. Thus, in the examples given, the remuneration for labor suffices for the support of the life of the infirm and for the expenses of the administration of the colony. And in America, eight colonies of abnormal persons in 1928 even made a profit of 6,000 dollars. Similarly, the colony at Ursberg in Bavaria can subsist well without alms and without subsidies.